S1808 of 2003 v Minister for Immigration
[2005] FMCA 154
•24 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S1808 of 2003 v MINISTER FOR IMMIGRATION | [2005] FMCA 154 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.03A(d)
Walton v Gardiner (1993) 177 CLR 378
Chu v Minister for Immigration & Multicultural & Indigenous Affairs (1997) 78 FCR 314
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
| Applicant: | APPLICANT S1808 of 2003 |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1629 of 2004 |
| Delivered on: | 24 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 16 February 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
The self represented applicant failed to appear.
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1629 of 2004
| APPLICANT S1808 of 2003 |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 10 August 1998, affirming the decision of the delegate of the respondent (“the delegate”) made on 20 May 1997 to refuse to grant the applicant a protection visa.
Background
The applicant, who is a citizen of India, arrived in Australia in September 1996. On 9 January 1997 he lodged an application for a protection visa with the Department of Immigration & Multicultural Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”). On 20 May 1997 a delegate of the Minister for Immigration & Multicultural Affairs (“the delegate”) refused to grant a protection visa and on 19 June 1997 the applicant sought a review of that decision. The Tribunal found that there was no issue arising from the validity of the application for review or as to the Tribunal’s jurisdiction to review the delegate’s decision.
The applicant was born in 1963 and is a married Sikh farmer from the Punjab. He claimed that he feared persecution upon returning to India because of his political grounds, in that as a pro-Khalistan militant he would be sought by the authorities. In his original visa application, the applicant stated he left India because of police torture due to his association with the militant Sikhs Students Federation. The applicant stated that his family life was ruined and he had to leave his farm to save his life. He claimed he feared he would be killed if he returned to India because of his socio-economic political beliefs which are in direct conflict with the Indian Government.
In his oral submissions at the hearing before the Tribunal, the applicant stated he had worked for the militants from 1984 to 1996. The applicant claimed he worked for one prominent leader, Manjit Singh, who had been deported from Germany and subsequently lost his life while in detention.
The Tribunal’s findings and reasons
The Tribunal was prepared to accept that the applicant, like many thousands of Sikhs at the time of severe repression by the Indian authorities of Sikh militancy, was detained and mistreated. However, the Tribunal found it implausible that the Indian police have maintained a continuing interest in the applicant to such an extent that he could be considered a high profile militant in danger of detention and persecution upon return to India. The Tribunal believed his marginal association to the organisation was reflected in his lack of clarity over the actual name of the organisation to which he claimed membership. The Tribunal noted that the applicant had lived and worked in Calcutta for some two years and was never detained or questioned. The Tribunal found that the applicant had none of the characteristics identified in the country information that it had before it as being characteristic of a high profile militant in danger of arrest and detention.
The independent evidence available to the Tribunal indicated that Sikh separatism had declined radically in recent times and with it the repression of the Sikh militancy in the Punjab. In light of the applicant’s own evidence, the Tribunal found that it was not the profile of someone who was at risk and consequently found that the applicant’s fear of persecution for his political opinion or for any other Convention reason upon his return to India was not well-founded.
Application for review of the Tribunal’s decision
On 28 May 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 together with an affidavit. These documents do not contain formally pleaded grounds, however the affidavit contains a paragraph which makes the following statement and is the only statement submitted that may be characterised as a ground:
“2.Information that was adverse to my claims was used in the decision [indecipherable] of the decision witch was not put to me. If information was put to me I could have supplied supporting my claims.” (Errors included)
Litigation history
A brief summary of the litigation history of this applicant is as follows:
a)The initial application for a protection visa was lodged with the Department on 9 January 1997.
b)The application was rejected by the delegate on 20 May 1997.
c)The applicant sought a review of the delegate’s decision by the Tribunal on 19 June 1997.
d)On 3 August 1998 the Tribunal, constituted by Mr R Witton, affirmed the decision of the delegate to refuse to grant the applicant a protection visa.
e)On 7 September 1998 the applicant lodged an application with the Federal Court seeking a review of the Tribunal’s decision. This matter was given the File No. NG938 of 1998.
f)On 16 September 1998, by consent, his Honour Emmett J dismissed the application.
g)The applicant joined in an action to the High Court. However, the details of these proceedings have not been incorporated in the Court Book which was filed and served by the respondent in the current proceedings.
h)On 28 May 2004 the applicant filed a new application in the Federal Magistrates Court.
i)On 8 September 2004 the applicant appeared in person before a Registrar of this Court and was directed to file an amended application by 8 November 2004 together with written submissions five days prior to the hearing date. These orders were not complied with.
Hearing
The matter was listed for hearing at 10.15 a.m. However, at that time, there was no appearance by the applicant and there had been no advice received from the applicant as to his non-appearance or requesting an adjournment of the hearing. The matter was called before me finally at 10.35 a.m. and despite the matter being called in the precinct of the Court, there was no appearance by the applicant.
Despite the non appearance of the applicant, I have available to me the applicant’s initiating application and affidavit, the Court Book and written submissions by the respondent’s Counsel. Accordingly, I intend to proceed with the hearing generally pursuant to the Federal Magistrates Court Rules 2001 (Cth) Rule 13.03A(d).
Respondent’s submissions
Mr T Reilly of Counsel, appearing for the respondent, filed written submissions prior to the hearing which raised the following issues:
a)The proceedings brought by the applicant in the Federal Court in 1998 were disposed of by consent and the applicant’s application of 2004 before this Court is an attempt to re-litigate a case already disposed of and consequently should be dismissed as an abuse of process: Walton v Gardiner at 393; Chu v Minister for Immigration & Multicultural & Indigenous Affairs at 323-326.
b)The Tribunal in its decision of 3 August 1998 directly applied the real chance test from Chan Yee Kin v Minister for Immigration & Ethnic Affairs. The Tribunal’s conclusion that the applicant’s fears were not well-founded was a finding of fact that was open to it for the reasons given. There is no error of law in making a wrong finding: Abebe v Commonwealth of Australia at [137] and the Court cannot review the merits of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang at 272.
To the extent that the current application before this Court complains of a breach of procedural fairness no transcript of the Tribunal hearing has been filed so there is no evidentiary basis for this claim.
Reasons
The applicant in these proceedings appeared before Registrar McIllhatton on 8 September 2004 at which time he signed Consent Orders agreeing to file and serve an amended application setting out the full particulars of the grounds to be relied upon with any affidavit material in support of the application being filed on or before 8 November 2004. The applicant was also ordered to file and serve written submissions five days prior to the hearing date. Those orders have not been complied with.
At the directions hearing before the Registrar the applicant was provided with a copy of the Short Minutes of Order indicating that the matter would be heard in the John Maddison Tower, 88 Goulburn Street, Sydney on the respective date and time. Included with that Order was a location map identifying the Court building and the location relative to the building where the directions hearing was held. The applicant signed the Court copy of the Short Minutes of Order indicating that he received the material on that date. The applicant has failed to appear and no communication has been received from him indicating his inability to make an appearance.
The applicant is a self represented litigant and the Court is well aware of the problems he may face in clearly articulating the nature of his claim. The application and affidavit filed on 28 May 2004 do not contain a clearly identifiable ground of review. The applicant has been provided with an opportunity to rectify this problem but has failed to comply with the Courts orders. In the case of the self represented litigant this Court is under an obligation to independently consider whether any arguable case could be made out on the materials before the Court: Yo Han Chung v University of Sydney & Ors. The material before the Court is contained in the Court Book and, on a fair reading of the Tribunal’s decision, it does not disclose a ground of review. The applicant’s failure to attend the hearing deprived himself the opportunity to ventilate any matter which may have assisted the Court in reviewing his application.
I accept the respondent’s submission that the current application before the Court is an attempt to re-litigate the case already disposed of by consent and is an abuse of process. I further accept the other submissions that the Tribunal has applied the correct reasoning to its decision in 1998.
Conclusion
The applicant in these proceedings has failed to identify any ground of review of the Tribunal’s decision. A fair reading of the Tribunal’s decision on its face does not disclose any errors in the decision making process. As there is no evidence of jurisdictional error the applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 24 February 2005
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